Cheshire Cat, Cheshire Act

Following the Supreme Court decision in Cheshire West, which greatly expanded the definition of restriction of liberty to the point where the system has almost entirely broken down due to the huge increase in volume, the Law Commission have published an interim report on Deprivation of Liberty.

Unsurprisingly, they say that there’s no hot-fix available for the current mess we are in, and their recommendation is for Parliament to produce a brand new Act to put things right.

Given that Deprivation of Liberty was brought about as a solution for the Bournwood gap when the ECHR finally dealt with that case and told us that there was a truck-sized plot hole in our legislation about restricting the liberty of people who were not criminals and not mentally ill, “for their own good”, it probably did well to last as long as it did before crumbling like, well like, Cheshire cheese.

1.4 We have concluded that legislative change is the only satisfactory solution to the problems we outline below. During the next phase, the Law Commission will

produce draft legislation and a final report. The process of developing draft legislation is likely to result in some changes of substance to the approach outlined here.

This statement should not be construed as necessarily representing our final position.

1.5 The final report and draft legislation will be published before the end of 2016. It will then be for the Government to decide how the recommendations will be taken

forward.

Why, Government, here is some convenient long grass

GO ON THEN!

The Law Commission had a healthy response to its consultation, and this bit was, I think, telling

Finally, a significant number of consultees argued that any system which is based on Cheshire West

will be unsustainable. It was argued that the acid test defies common sense, the most frequently quoted examples being end-of-

life care andintensive care units. Most concerns related to the practical implications of Cheshire West .

Local authorities reported significant increases in the numbers of referrals locally (often above the tenfold national figure), widespread

non-compliance with time-scales for assessments and many “low-level” or “community” cases being left unassessed. Many queried why the

Law Commission was not seeking to legislate away the acid test.

Onto some detail

1.37 Nevertheless, it is our view that the new scheme must demonstrably reduce the administrative burden and associated costs of complying with the DoLS by

providing the maximum benefit for the minimum cost. With this in mind, we have therefore concluded that the new scheme should focus solely on

ensuring that those deprived of their liberty have appropriate and proportionate safeguards,and should not seek to go as widely as the protective care scheme.

1.38 We propose to recommend a more straightforward, streamlined and flexible scheme for authorising a deprivation of liberty. The responsibility for establishing

the case for a deprivation of liberty will be shifted onto the commissioning body (such as the NHS or local authority) that is arranging the relevant care or

treatment, and away from the care provider. This should provide greater clarity,since the body directly responsible for the proposed deprivation of liberty would

need to provide evidence to support its case. The required evidence would include a capacity assessment and objective medical evidence of

the need for a deprivation of liberty on account of the person’s mental health condition. The commissioning body would also be required to undertake certain

steps such as arranging for the provision of advocacy (or assistance from an appropriate person) and consulting with family members and others.

1.39 All those deprived of liberty would be eligible for safeguards to secure the protection of their rights under article 5 of the ECHR. For example, all those

deprived of their liberty (as well as others, such as family members and advocates) would have rights to seek reviews of their deprivation of liberty and

bring legal proceedings to challenge the deprivation of liberty. There will also be comprehensive rights to advocacy.

Sounds good, but the real test is going to be how possible it is going to be for a family member to challenge restrictive care arrangments and what help the State will provide them to do so. We know for example, that the Neary case showed up huge problems with the DoLs regime and had to be fought with tenacity by an exceptional human being to get the right outcome in the end. You could ask Mark Neary whether the protections that were in place and the mechanism for family members to be able to challenge were robust enough and simple to follow. I suspect I know what his answer would be. It shouldn’t require that a vulnerable person needs someone as remarkable as Mark to stand up for them, not every vulnerable person has that luxury.

The Law Commission touch on the Neary case here, and suggest some additional safeguards

1.41 By way of amendments to the rest of the Mental Capacity Act, we will also seek to maintain, as much as possible, the article 8 ECHR protections that were

contained in the supportive care elements of the scheme, but in such a way as to minimise the demand upon services. These amendments will be aimed primarily

at ensuring that there is proper consideration, in advance of the decision being made, of the necessity of removing individuals from their own home and placing

them in institutional care in the name of their best interests.

The failures of public bodies in this regard have been evident in high-profile cases such as London Borough of Hillingdon v Neary and Essex County Council v RF

The amendments would also aim at giving greater priority to the person’s wishes and feelings when a best interests decision is being made, and qualifying the

immunity from legal action in respect of best interests decisions under section 5 of the Mental Capacity Act so as to provide additional procedural safeguards in

respect of certain key decisions by public authorities.

1.42 In addition we are considering whether a defined group of people should receive additional independent oversight of the deprivation of their liberty, which would be undertaken by an Approved Mental Capacity Professional. Owing to the vast number of people now considered to be deprived of their liberty

following Cheshire West, it would not be proportionate or affordable to provide such oversight to all those caught by article 5 of the ECHR. Whilst

we are still working to develop the precise criteria that would operate to identify this group, we envisage that this group would consist of those who are subject

to greater infringement of their rights, including, in particular, their rights to private and family life under article 8 of the ECHR.

And it wouldn’t be a civil service consultation without an omphaloskepsis exercise of deciding what it should be called

1.47 At consultation we provisionally proposed that the First-tier Tribunal should review cases under our new scheme, thereby replacing the role of the Court of

Protection. This proposal was supported by a significant number of consultees.

We were told that the advantages of a tribunal system included its accessibility, informality and speedy decision-making. But others pointed to the existing levels

of knowledge and expertise in the Court of Protection and the difficulties of demarcation or overlap with the remainder of the Mental Capacity Act if a tribunal

jurisdiction was introduced. We have not yet reached a final decision and will be considering our position further over the coming months.

1.48 Finally, perhaps the issue that provoked most debate at consultation was the nomenclature associated with the DoLS. Most consultees felt that the term

“deprivation of liberty safeguards” was at best unhelpful and, at worst, meant that people were being denied access to legal rights. Some consultees were similarly

critical of our proposed new terminology, including the label “protective care”. A number of consultees suggested the name “liberty safeguards”, whilst the next

favourite was “capacity safeguards”. However, there was no consensus on the terminology that should be adopted. Therefore we invite further

views (by 23 June 2016) on the name that should be given to the new scheme.

Please send your suggestions to Olivia.Bird@lawcommission.gsi.gov.uk.

There are some legitimate issues here about how naming something creates a set of preconceptions about what the scheme is for and whether it is intended to be a rights-based or a patrician cotton wool scheme, or where on the scale it falls, but this sort of thing always does remind me of Douglas Adams, writing about a bunch of middle-managers and marketing execs who fled their own planet and find themselves living on Earth in the stone age, trying to rebuild society from the ground up.

Well, you’re obviously being totally naive of course“, said the girl, “When you’ve been in marketing as long as I have, you’ll know that before any new product can be developed it has to be properly researched. We’ve got to find out what people want from fire, how they relate to it, what sort of image it has for them.” The crowd were tense. They were expecting something wonderful from Ford. “Stick it up your nose,” he said. “Which is precisely the sort of thing we need to know,” insisted the girl, “Do people want fire that can be fitted nasally?“ “And the wheel,” said the Captain, “What about this wheel thingy? It sounds a terribly interesting project.” “Ah,” said the marketing girl, “Well, we’re having a little difficulty there.” “Difficulty?” exclaimed Ford. “Difficulty? What do you mean, difficulty? It’s the single simplest machine in the entire Universe!“ The marketing girl soured him with a look. “Alright, Mr. Wiseguy,” she said, “if you’re so clever, you tell us what colour it should be.“

6 responses

What do I do about my son Martin, who was under an unauthorised dols for 5 years, and is now under an authorised dols for the third year running a dols that is quite illegal. Please answer this – what do I do? From the moment the House of Lords Select Committee stated the MCA was not fit for purpose I have been asking what happens to Martin? There isn’t a solicitor or barrister that will touch this case, Mr Justice Charles himself said in 2007 the Official Solicitors case was a SHAMBLES. I am a litigant in person, how do I help Martin? I asked the Law Commission this question, they replied they could not give me legal advice. Martin is being deprived of his liberty not even illegally, because there isn’t a law that can be illegal, This is a mad statement, because the situation is insane. Read Finola Moss’s blogs. I want Martin himself in the Court upholding his rights. Please answer this. As soon as possible.

The current MCA is the legislation that the Courts would be using – the Law Commission are recommending that this law be changed, but Parliament hasn’t even considered it yet. So it would have to be challenged when the one year authorisation comes up for renewal, assuming that the period for appeal is now passed. Any authorisation currently made by the Courts is legal, done under valid legislation. The Law Commission stuff is about proposed reform to the legislation – neither they, nor the House of Lords Select Committee have the power to declare the MCA unlawful or to change it – they can, and have, criticised the current legislation and recommended that it BE changed, but until Parliament pass new legislation, the Mental Capacity Act is a lawful Act of Parliament, and it is that law that would apply to your son.

And, when this appears insufficient ,the Law Commission is called in to change the law.

The law should not be changed to enable millions, and increasing, citizens, to be rendered incapable of making any decision, and have their liberty removed for life.

Why is all this being done, and why was the MCA created ?.

It happens no where else in the world.

The reason was not to protect, but to enforce medication, medical treatment and care services.

And, to revolutionise adult social care ,so that all old, vulnerable, as many in need as possible, can be harvested, into venture capital backed, ever more efficient for profit cages, boosting our economy ,and, except for enforcement obliterating social services, at the expense of our autonomy, liberty and democracy.

I understand what you write – but from Martin’s standpoint I don’t know how to help him. When Mr Justice Charles said the OS’s case was a shambles, the OS was acting as Martin’s litigation friend. This was 7 October 2007, probably first case under the MCA. The judge should have stopped the case, – Martin wasn’t there, but I was, but I was forbidden by the OS from being Martin’s litigation friend. Martin says again and again “the judge isn’t listening to me” The Act is supposed to empower Martin. His last RPR didn’t visit him or phone him for months. No-one has told him he can have an IMCA, The LA have forbidden me from being Martin’s RPR – they state “given that Martin was assessed as not having the capacity to select his own RPR and the fact that Martin does not have an LPA or Deputy for health and welfare with the authority to recommed an RPR for him, and………concluded that it would be in Martin’s best interests to have a paid RPR” Neither Martin nor I have received a copy of the Authorisation. It is Martin who is in this position, along with thousands of others, and I dont know how to help him

‘they can, and have, criticised the current legislation and recommended that it BE changed’

The House of Lords Select Committee ,did not criticise the MCA, it criticised its illegal implementation, as illustrated by their consultations.

So, it is not the MCA, that needs changing, although it should never have been enacted, it is its implementation..

But, deliberately, it would appear, if the MCA is implemented legally, it would be practically unworkable, as drafted.

Take for example, what the law, actually states, on capacity, remembering, this is what gives the COP jurisdiction to apply the MCA, and, through this power, care providers..

Lady Hale, in the Cheshire judgement, emphasises, the severity of ‘incapacity’, by the use of the term ‘ of unsound mind’.

And, crucially, the MCA states, the assessment of a person’s ‘capacity’,is effectively a one off, and,only ever, in respect to a ‘particular decision ‘,that needs to be made, at a ‘particular time’, in a person’s ‘best interests’ see MCA Code of Practice para 4.4.

Further, s1(3), which is an overarching principle of the Act, and therefore, the paramount duty of COP, care provides, states,

‘A person is not to be treated as unable to make a decision unless all practical steps to help him to do so have been taken without success’

So, before each inhabitant in state care, is washed, fed, wishes to go out, their capacity in respect to each of these decisions, must be maximised, and then, if the decision has to be made for them, it has to be made in their ‘best interests’.

How can all this, practically, be ensured in our world of efficient, maximum profit care?

More fundamentally, a person cannot lose capacity per se, so the COP, does not have continuing jurisdiction, as its power relies on this lack of capacity.

And capacity, inherently, includes the DOLS issue, so it becomes rather superfluous.

Ie if decided, a person does not have capacity to make the decision to leave a residential setting, then this decision, made by a care provider, after a capacity maximisation and assessment, to stay, satisfies the deprivation of liberty criteria, and is made for him in his ‘best interests’.

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Nonsense, family law, sarcasm. Not always in equal proportions

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